“DIET COKE” MISLEADING BECAUSE IT DOES NOT PROMOTE WEIGHT LOSS

            An interesting class action lawsuit, filed in the Federal District Court, claims that by marketing its soft drink “Diet Coke,” the Coca-Cola Company violates New York State law because drinking Diet Coke does not cause weight loss, in fact there is evidence it causes weight gain.

THE MARKETING OF “DIET COKE”

            The lawsuit alleges Coca-Cola’s marketing is misleading for using physically fit and attractive models enjoying Diet Coke. That suit also claims it is misleading to advertise that Diet Coke will “not go to your waist.” And the primary theory of the case: the “Diet Coke” label itself constitutes a misleading statement.

            The trial court ruled for Coca-Cola. The Court of Appeals tipped its hand starting its Opinion with: “This court has twice similarly rejected substantially identical claims (from the same attorneys no less) in the past few months.”

DIET COKE WILL “NOT GO TO YOUR WAIST”

            The Court of Appeals ruled in favor of Coca-Cola stating the phrase “Diet Coke will not go to your waist” is vague and non-specific and unactionable “puffery.” Similarly, Coca-Cola’s use of attractive models is ubiquitous and as the Court wrote, “cannot be reasonably construed to convey any specific meaning at all.” Even I could figure that out.

            Two strikes against plaintiffs.

DIET COKE PROMISES WEIGHT LOSS

            Finally, the Court struck down the plaintiffs’ argument that “Diet Coke” is a general weight loss promise, especially when compared to regular Coke.

            The Court ruled the “Diet Coke” label refers specifically to the drink’s low caloric content and is not a promise of weight loss. Diet Cokes are merely lower in calories than the non-diet version of the same drink.

ASPARTAME

            One of the allegations in the lawsuit caught my attention:  By using the artificial sweetener Aspartame, acesulfame-potassium, Diet Coke is likely to cause weight gain.

            The lawsuit cited several studies documenting that artificial sweeteners contribute to weight gain and “promote energy intake and contribute to obesity.”

            Plaintiffs’ brief:  “In sum, calories consumed in a mismatched condition, such as when a person drinks a Diet Pepsi while eating food, are not efficiently metabolized at the time of ingestion, and may therefore be processed later, or stored, which can drive weight gain and further interfere with metabolism.”

            Unfortunately, Aspartame, a questionable product in the opinion of many, was not discussed in the Court Opinion.

                       Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada.  Jim’s practice areas include:  real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters.  He may be reached at porter@portersimon.com or www.portersimon.com.   Like us on Facebook.    ©2019